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NIEWENHOUS v. UNITED STATES

May 23, 1946

NIEWENHOUS et al. LEESNITZER, Intervener
v.
UNITED STATES et al. THE LYMAN ABBOTT



The opinion of the court was delivered by: BYERS

This is a salvage cause instituted by 9 out of 27 members of the crew of the S.S. Lyman Abbott, of whom one has since withdrawn his claim, based upon services said to have been rendered as salvors to the said ship in removing her from her anchorage in the harbor of Bari, Italy, on December 3, 1943, and thereafter, as will be stated.

The Abbott was owned and operated by the United States of American at all times material to this controversy, and the cause has been withdrawn as to the other respondents named above.

The Abbott was one of a convoy of merchant ships in the said harbor, which were subjected to a devastating air raid by enemy planes of which some were bombers, at about 7:00 P.M. on December 2, 1943; while the Abbott was not bombed, one man was killed and others were wounded and she suffered damage from flying debris from other ships, namely, pieces of steel and other substances, including a 6-ton section of steel deck plating; her fire hose lines were broken; cargo-booms, hatches and other gear were smashed, and her position was one of dire peril, since her cargo consisted of explosive war materials, including gasoline, in part. Un der those circumstances, the Master ordered the crew to abandon ship, and conducted all hands ashore in the ship's boats and rafts, including those who had been wounded.

 The question for decision is whether the Master in fact yielded up his ship in a final and conclusive sense, and in the belief that it was lost, and released the members of the crew from all further duties so that they became free agents to contract for any service that might offer itself; for example, as volunteers in a salvage operation.

 The case for the libelants has been carefully scrutinized in the belief that the burden is upon them to establish by clear and convincing evidence that the abandonment of the ship was ordered by the Master because he must have believed that there was no reasonable hope that he could recover his ship and therefore elected to depart from it without hope of being able to bring the voyage to a successful conclusion and to discharge his sorely needed cargo that it might come into the hands of those who were conducting the Nation's battles.

 That is not too stringent a requirement when it is remembered that every motive to serve the Nation in its hour of peril must be ascribed to the man with whom the decision lay.

 It is thought that the Master of a cargo ship in time of peace -- whose judgment when facing peril would at most be visited upon underwriters -- would not be constrained by those compulsions of loyalty of which the Master of the Abbott must have been aware when he made the decision now under examination.

 That which was indeed taking place in his mind of course cannot be determined with any degree of precision, since all that we have to support conjecture is confined to what he said and what he did; nor is it completely convincing to rely solely upon his own statement concerning his mental operations, as he recalled them nearly five months later when his deposition was taken; what is known of the circumstances as they existed at the time, and what may be described as the probably mental operation of the Master, afford at best an opinion as to what may be fairly attributed to him by way of intention, in the hope that the aggregate of these reflections will not be side of the truth.

 Considering first the testimony of the libelants, it will be observed that they comprehend in numbers but one-third of the crew on the homeward voyage, and of those 9 individuals but 4 were called as witnesses, namely:

 Belodraydich, 3rd cook and later Steward,

 Lishman, Utility Messman,

 Lind, Ordinary Seaman,

 Salkay, Radio Operator.

 Niewenhous, originally a libelant, withdrew from the cause, and wrote a letter to proctors under date of April 4, 1944 (Libelants Exhibit 1) stating:

 'In regard to our recent conversation in which I signed a letter for damages in a salvage case regarding the S/S 'Lyman Abbott.'

 'After giving it more thought, I have come to the conclusion that the idea is unreasonable inasmuch as I did nothing except that which I was hired to do.

 'Consequently, I wish to withdraw my name from the proceedings.'

 He was a deck cadet midshipman.

 The libelant Leesnitzer, a deck engineer, was admitted to the cause as a libelant (See order of July 26, 1944).

 To establish the complete and final abandonment of the ship by the Master, and the release of the crew from their obligations arising from the shipping Articles, reliance is had upon the following:

 Belobraydich:

 Referring to the trip in the life boat from the Abbott to the jetty, he explained that the boat was filled with water on which there were oil slicks, and that there were men abandoning other ships, and then the following:

 'Q. Was there any conversation with the captain or did the captain say anything on the way in from the Lyman Abbott to the jetty? A. Yes.

 'Q. What was said? A. He made the remark, 'All is lost and I feel sorry for the poor fellows.'

 'Q. And did you see any men from other ships in the waters around you as you went in toward the jetty? A. Yes, sir, there were two fellows not too far away, swimming, and they were calling for help. The captain said 'I wish you would pick up the poor fellows,' but we did not do it.'

 After landing at the jetty, he says that no orders were given by the Captain or the First Mate with respect to where the crew should go or report.

 He testified that there were many men from other ships and likewise British soldiers at that place, and that after the wounded were taken care of he decided to go toward town and find some refuge, and that he did not know where the rest of the men from the Lyman Abbott went.

 Of course this could not be true, as he met several of them at the Fleet Club later.

 He said that the First Mate was with him (the witness) part of the time, an indefinite period. That he first went to the Navy House and got some dry clothes, but he did not see either the Captain or the First Mate there, and he went to the Fleet Club to get refreshments, and that he did see the Captain and the First Mate at that place, where the former gave him a brief case 'and he told me to care for it with my life and under no conditions to give it to nobody or anybody. * * * It contained the ship's papers. * * * He likewise made the remark that we could get a new ship.'

 The witness later returned to the Navy House, where he saw some of the crew of the Abbott and the First Mate and the Purser and a great number of British soldiers. He stated that the First Mate said 'We did not have enough men,' which the witness understood to mean, to take the ship out of the harbor, and then the witness said that he himself would go back to the Fleet Club and ask for volunteers. Before doing that, he turned the brief case over to the Purser after the latter had asked what it was that he had in his The witness said: 'The captain told me to take care of them and not give them to anybody. He (the Purser) said, 'Leave them with me. I use the papers all the time anyway.' I hesitated but I gave him the papers and I went to the Fleet Club.'

 There he started talking to different individuals and asked them to volunteer to come back out and take the Lyman Abbott out of the harbor, and he spoke to three of them, and then apparently to four others, because he said that, when he started back out of the door, there were seven in the group, but only five arrived at the Navy House; there the witness reported to the Mate, who again said that there were not yet enough men 'and then the purser volunteered to go back and talk to our boys.'

 Eventually this group went back to the ship, although he could not give the exact number constituting the party, but 27 in all, including the Captain, took charge of the Abbott on December 3rd, as has been stated.

 When the return trip to the vessel was made, there were ships still afire and an oil slick was still burning on the water.

 It will be seen from the foregoing summary that only one statement was attributed to Dahlstrom, the Master, and one action, namely, the delivery of the ship's papers to the witness. Other than that, this particular testimony does not purpose to expose the mental processes of Dahlstrom by word or deed.

 Salkay:

 He made his way from the Abbott in the No. 1 life boat, which contained neither the Captain nor the First Mate; and when he reached the jetty, the Captain was already there and there was a general conversation participated in by all hands in the vicinity of the Captain, but nothing specific was developed. As the witness explained, 'All we were concerned with at that moment was with the safety of ourselves and of the wounded.' Arriving at the Navy House, he said that he exchanged words with Nichols, the Third Engineer, who told him as to his life jacket: 'Hold on to that, that belongs to you now * * * because anything that you take off a ship, when you abandon ship, it becomes your property.' There was some further conversation along this line, and the witness said that 'the Captain showed his displeasure by stating, 'all that you are thinking of is your own personal property and here we have lost a whole ship.' That shut me up.'

 In the cross examination the following occurred:

 'Q. Well, just one simple question, whether the captain told you that you were discharged from the further service of the ship? A. No not in those words.

 'Q. In any words? A. I was led to believe that I was on my own.

 'Q. I did not ask you that, what you were led to believe; did the captain tell you that? A. The only answer that I can say to that is no.'

 This witness returned to the Abbott as a member of the party last above referred to.

 When he was paid off in New York, he protested that he had not received all the money that he was entitled to under his Articles, but asserted no claim for salvage services.

 He said that on the return voyage he stood regular radio watches in all respects as when the ship was outbound.

 The following appears in his cross examination:

 'Q. Did you at any time prior to the payoff consider that you were a salvor? A. I cannot say whether I did or I did not.

 'Q. Who first gave you the idea? A. No one gave me the idea. On the homeward bound voyage there was * * * some conversation throughout the ship about well, maybe there is a salvage claim on this. Where the conversation originated or started I don't know -- it was just scuttle butt drifting around the ship.'

 Later he said that Lishman, whom he met in the company's office, showed him a slip of paper which he signed because the others had, but the exact nature of it he said did not appear.

 He said on redirect examination that he was not ordered to return to his ship on the morning of December 3rd, ...


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